Opinion
ID No. 93120128871 (R-3).
June 18, 2010.
Marvin McMillion, James T. Vaughn Correctional Center, Smyrna, DE.
Dear Mr. McMillion:
The Court received your 3rd Superior Court Criminal Rule 61 ("Rule 61") Motion for Postconviction Relief on June 14, 2010.
It is procedurally barred for several reasons and must be denied.
1994
You were charged, tried and sentenced in 1994 on the offenses of attempted unlawful sexual intercourse in the first degree, robbery in the first degree, burglary in the first degree, unlawful sexual penetration, and criminal mischief. The victim was an 80-year-old lady. She was not able to identify you visually because of the bag thrown over her head, but she identified you by your voice. She had known you your entire life, cared for you during your childhood and also as an adult. She had adequate means to be able to identify you in this fashion.
You were sentenced to a total of forty-one years at Level 5.
On direct appeal, there was an attack as to the sufficiency of the evidence. The conviction was affirmed. McMillion v. State, 1995 WL 319121 (Del. May 19, 1995), 660 A.2d 394 (Del. 1995) (TABLE).
Your first Motion for Postconviction Relief was filed in 1997. The grounds were ineffective assistance of counsel and insufficiency of evidence to convict. This Motion was denied. The insufficiency of evidence claim was procedurally barred and the ineffective assistance of counsel was denied on its merits. This decision was affirmed by the Supreme Court. McMillion v. State, 1998 WL 67727 (Del. Feb. 6, 1998), 706 A.2d 26 (Del. 1998) (TABLE)
In 2004, you filed your second Motion for Postconviction Relief raising insufficiency of the evidence and ineffective assistance of counsel. That was denied and the Supreme Court affirmed this ruling. McMillion v. State, 2004 WL 2830899 (Dec. 6, 2004), 864 A.2d 929 (Del. 2004) (TABLE).
In the present Motion, you allege ineffective assistance of counsel, false identification (a repackaged insufficiency of the evidence claim), and a violation of the Innocence Project.
You spend a significant portion of your Motion arguing you were falsely convicted and therefore the Court should not apply the procedural bars of Rule 61(i) because of the miscarriage of justice exception in Rule 61(i)(5). You seek an order requiring DNA testing of hair (chest hair) that was collected from the victim.
You re-plow old ground as to your conviction being based on the voice identification of the lady who knew you well.
The procedural bars applicable to this, your third Motion for Postconviction, are as follows:
(a) Rule 61(i)(1). The Supreme Court mandate on your direct appeal was filed over 15 years ago. When you were convicted, the time for filing a postconviction application was three (3) years. You are obviously too late as to the present Motion.
(b) Rule 61(i)(2). This is your third Motion. It is repetitive.
(c) Rule 61(i)(4). These issues have been adjudicated earlier. The insufficiency claim has been addressed on direct appeal and in the two previous postconviction decisions. The ineffective assistance of counsel claim was addressed in the previous two postconviction decisions.
Your attempt to claim actual innocence and request DNA testing likewise fails. At trial, it was undisputed that the hair that was found, and that you now want DNA tested, was not yours. The jury knew this.
The Office of the Public Defender reviewed your case as a part of the Innocence Project. By correspondence dated April 9, 2002, Lisa M. Schwind, Esquire, who was the Director of the Innocence Project at that time, informed you that because the jury knew the hair was not yours, the Innocence Project would not pursue your case.
Now, seven (7) years later, you complain about this decision. Ms. Schwind was correct, and if you truly thought otherwise, you should not have waited seven years to complain.
As a final postscript, I note that there can be no DNA testing. It would be impossible to get a known sample from the victim. She died in 1997.
Your third Motion for Postconviction Relief is denied as being procedurally barred and as to the merits because the jury knew it was not your hair that was recovered from the scene.
IT IS SO ORDERED.